SOUTHERN NATURAL GAS COMPANY, Plaintiff-Appellee,

                                                      v.

  LAND, CULLMAN COUNTY, 2.0 acres of land located in Cullman County, Alabama; Mack Rice, et
al., Defendants-Appellants.

                                                No. 99-6008.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Dec. 16, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. 97-01728-CV-L-S),
Seybourn H. Lynne, Judge.

Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and NESBITT*, Senior District Judge.

        DUBINA, Circuit Judge:

        This case involves an appeal from a judgment entered in favor of the appellee in a pipeline

condemnation action filed pursuant to the Natural Gas Act, 15 U.S.C. § 717, et seq.1 The landowners, among

other things, challenge the use of a federal land commission, pursuant to Federal Rule of Civil Procedure

71A, to determine the appropriate compensation for a federally authorized taking of private land. We affirm

in part, and vacate in part.

                                             I. BACKGROUND

        Appellee, Southern Natural Gas Company ("Southern"), is an interstate natural gas pipeline company

serving the southeastern United States. Southern entered into long term service contracts with the cities of

Huntsville and Decatur, Alabama, to provide natural gas transportation services to those north Alabama cities.

In order to provide such services, Southern must construct a 122-mile extension of its pipeline, extending it

from Tuscaloosa to Huntsville. Southern obtained a Certificate of Public Convenience and Necessity from



   *
    Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the Southern District of Florida, sitting
by designation.
   1
   In addition to the present case, there are approximately 20 additional appeals pending involving the
same issue presented here which have been stayed by order of this court.
the Federal Energy Regulatory Commission ("FERC") for the purpose of constructing the pipeline. Extension

of the pipeline requires the use of a series of 50-foot-wide permanent easements that will cross some 500

tracts of land in seven Alabama counties. Although a majority of the landowners signed right-of-way

agreements with Southern, it became necessary to condemn nearly 200 tracts of land. This appeal involves

the process by which "just compensation" for the taking of these 50-foot easements will be determined.

        Pursuant to the Natural Gas Act, 15 U.S.C. § 717, et seq., which governs the activities of interstate

pipelines like Southern's, Southern filed condemnation actions in the United States District Court for the

Northern District of Alabama. For judicial efficiency, all of these cases were assigned to Judge Seybourn H.

Lynne, who, exercising the discretion granted him under Rule 71A of the Federal Rules of Civil Procedure

("Rule 71A"), appointed a federal land commission ("the commission") to hear the just compensation cases.

In deciding to use a commission rather than conduct individual jury trials, Judge Lynne stated his concern

that "[i]t would take years and years in jury trials" to determine the amount of just compensation due to the

landowners in these cases.

        Throughout the condemnation process, the district court provided guidance to the commission in

terms of procedure, just compensation principles, and applicable standards. In accordance with the district

court's instructions, the commissioners viewed the properties and conducted evidentiary hearings. After each

evidentiary hearing, the commission reported its determination of the amount of just compensation due to the

owner of each tract. If either party objected to the commission's report, Judge Lynne heard those objections

and permitted testimony, as well as the presentation of other evidence, before adopting, modifying, or

rejecting the report as provided in Federal Rule of Civil Procedure 53(e)(2).

        The route of Southern's natural gas pipeline crosses a 100 acre cattle pasture owned by Mack and

Callie Mae Rice ("the Rices") in Cullman County, Alabama. Southern filed a condemnation complaint in the

Northern District of Alabama against this property. The complaint included a legal description and a plat map

depicting the easements needed across the Rices' land.
        Subsequently, the commissioners, parties, and lawyers viewed this tract, and the commissioners

conducted an evidentiary hearing to determine the appropriate award of just compensation for the taking of

the pipeline easement. The commissioners had no problem identifying and walking the easement. Witnesses

for both sides testified before the commission, offering opinions as to the value of the permanent and

temporary takings.

        After the commission issued its report to the district court regarding the Rices' land, the district court

conducted a hearing on the parties' specific objections to the report. The court then entered a judgment and

memorandum opinion modifying the commission's findings with respect to amounts awarded for (1) a

"limiting effect" on "future improvements," and (2) dislocation to the Rices' cattle operation. The Rices

appeal the district court's modification of the commission's determination on these two issues and challenge

the court's discretion to appoint a commission, as well as the court's finding that the complaint for

condemnation contained an adequate land description.

                                        II. STANDARDS OF REVIEW

         We review the district court's decision to deny a jury demand and appoint a Rule 71A commission

to determine just compensation in eminent domain cases for abuse of discretion. See United States v.

2,477.79 Acres, 

, 27 (5th Cir.1958).2 The extent to which Rule 71A supersedes the practice and

procedure language of 15 U.S.C. § 717f(h) is a question of law. This court subjects questions of law to de

novo review. See Blackfeet Nat'l Bank v. Nelson, 

, 1240 (11th Cir.), cert. denied, --- U.S. ----,

, --- L.Ed.2d ---- (1999).

         The district court's decision that Southern's legal description was adequate is a finding of fact that

must stand unless clearly erroneous. See Onishea v. Hopper, 

, 1296 (11th Cir.1999)(en banc

)(petition for certiorari filed May 20, 1999). Whether the legal description must conform to the standards of




   2
   In Bonner v. City of Prichard, 

(11th Cir.1981)(en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent the decisions of the former Fifth Circuit issued before October 1,
1981.
Rule 71A or to the standards of state law is a question of law to be reviewed de novo. See Blackfeet Nat'l

.

         This court reviews the district court's determination of just compensation for clear error. See O'Brien

v. United States, 

, 952 (5th Cir.1968).

                                                 III. ANALYSIS

         The Takings Clause in the Fifth Amendment to the United States Constitution prohibits the

government, or its agents, from taking private property for "public use" without "just compensation." U.S.

Const. Amend. V. Passed in 1938, the Natural Gas Act, 15 U.S.C. § 717f(h), gives private gas companies the

federal power of eminent domain to acquire the necessary right of way to construct, operate, and maintain

a pipe line for the transportation of natural gas. The statute grants jurisdiction to the U.S. district courts when

the amount claimed by the owner of the property to be condemned exceeds $3,000. 15 U.S.C. § 717f(h).

A.       Jury Trial or Commission

         This appeal raises the issue of whether Rule 71A of the Federal Rules of Civil Procedure supersedes

the Natural Gas Act's practice and procedure clause for the condemnation of property.3 The Rices argue that

they are entitled to a jury trial under the Natural Gas Act, 15 U.S.C. § 717, et seq. The Natural Gas Act

provides that the practice and procedure in a condemnation action "shall conform as nearly as may be with

the practice and procedure in similar action or proceeding in the courts of the State where the property is

situated." 15 U.S.C. § 717f(h). Southern, however, contends that the Rices are not entitled to a jury trial

because Rule 71A grants the district court, in any action which "involves the exercise of the power of eminent

domain under the law of the United States," the discretion to determine whether the issue of just

compensation will be heard by a jury or a court-appointed commission.4 Fed.R.Civ.P. 71A(h). In our view,



     3
    As a threshold matter, Georgia Power Co. v. 138.30 Acres of Land, 

(5th Cir.1979),
confirms that: (1) landowners have no constitutional right to a jury trial, and (2) the district court has the
discretion, under Rule 71A, to appoint a commission to determine just compensation. See 

see also Alabama Power Co. v. 1354.02 Acres of Land, 

, 667-68 (11th Cir.1983).
     4
   Federal Rules of Civil Procedure 71A specifically excludes from this provision, "any tribunal
specially constituted by an Act of Congress." This exception is not applicable to the present case.
Southern is correct because Rule 71A authorizes the district court judge to use a commission in this case and

the Rule supersedes the Natural Gas Act's practice and procedure clause.

         Rule 71A(h) expressly provides, in pertinent part, that

        any party may have a trial by jury of the issue of just compensation by filing a demand therefor
        within the time allowed for answer or within such further time as the court may fix, unless the court
        in its discretion orders that, because of the character, location, or quantity of the property to be
        condemned, or for other reasons in the interest of justice, the issue of compensation shall be
        determined by a commission of three persons appointed by it.

Fed.R.Civ.P. 71A(h) (emphasis added). The plain language of Rule 71A grants the district court broad

discretion. The district court may, in its discretion, order a hearing by a commission for any number of

reasons: the character of the property, or the location of the property, or the quantity of the property, or

"other reasons in the interest of justice." We believe that Southern's pipeline project, with over 500 tracts of

property spread over seven counties and 122 miles, is precisely what the drafters of Rule 71A had in mind

in listing exemplary reasons for denying jury trials (character, location, and quantity). Thus, the district court

correctly exercised its discretion in appointing a commission to determine the issue of just compensation.

        To apply Rule 71A in the case before us, the court must determine that Rule 71A supersedes the

Natural Gas Act's practice and procedure clause. "Courts generally adhere to the principle that statutes

relating to the same subject matter should be construed harmoniously if possible, and if not, that more recent

or specific statutes should prevail over older or more general ones." United States v. Lara, 

, 198

(1st Cir.1999) (citing HCSC-Laundry v. United States, 

, 6, 

, 

(1981) and

Morton v. Mancari, 

, 550-51, 

, 

(1974)), cert. denied, --- U.S. ----,

, --- L.Ed.2d ---- (1999). The Supreme Court has already determined, in cases dealing with

statutes other than the Natural Gas Act, that Rule 71A supersedes the practice and procedure language of the

prior statute. In United States v. 93.970 Acres of Land, 

, 

, 

(1959),

the Court rejected the assertion that the practice and procedure language in 50 U.S.C. § 1715 controlled over



   5
    Title 50 U.S.C. § 171 (1918) (repealed 1956) provided that condemnation proceedings were "to be
prosecuted in accordance with the laws relating to suits for the condemnation of property of the States
wherein the proceedings may be instituted." 50 U.S.C. § 171.
the more recent procedural directives set forth in Rule 71A. 

n. 7, 

. The

Court stated, "it is settled that this [practice and procedure] language required conformity in procedural

matters only. And insofar as it required such procedural conformity it was clearly repealed by Rule 71A,

Federal Rules of Civil Procedure." 

omitted). Later, in Kirby Forest Industries, Inc. v.

United States, 

, 

, 

(1984), the Court again noted that the practice and

procedure language of a prior statute6 had been superseded by the passage of Rule 71A. 

n.

2, 

.

          In accordance with the principle that a more recent statute prevails over an older conflicting statute,

we can find only one case that directly analyzes the relationship between Rule 71A and § 717f(h). In USG

Pipeline Co. v. 1.74 Acres in Marion County, Tennessee, 

(E.D.Tenn.1998), the district court

held that Rule 71A superseded the practice and procedure language of § 717f(h). Specifically, the court

stated:

          The Natural Gas Act was enacted in 1938, and Rule 71A was enacted in 1951. Rule 71A(a)
          provides: "The Rules of Civil Procedure for the United States District Courts govern the procedure
          for the condemnation of real and personal property under the power of eminent domain, except as
          otherwise provided in this rule." The Advisory Committee Notes to Rule 71A state: "Rule 71A
          affords a uniform procedure for all cases of condemnation invoking the national power of eminent
          domain, and ... supplants all statutes prescribing a different procedure." See Kirby Forest Indus. v.
          United States, 

, 

, 2191 n. 2, 

(1984) ("The adoption in 1951
          of Rule 71A capped an effort to establish a uniform set of procedures governing all federal
          condemnation actions.") Interpreting a statute with similar language requiring conformity with state
          practice and procedure, the United States Supreme Court found the statute's procedural conformity
          provision was "clearly repealed" by Rule 71A. United States v. 93.970 Acres Land, 

,
          

, 1196 n. 7, 

(1959); see also Kirby 

& n. 2
          (determining Rule 71A supersedes requirement of conformity with state practice and procedure
          contained in 40 U.S.C. § 257).

USG Pipeline 

. We agree with the Tennessee district court that Rule 71A, not the

practice and procedure language of § 717f(h) and not state law, governs the proceedings in the instant case.




   6
    The Kirby Forest Court noted that "[s]uits under [40 U.S.C.] § 257 originally were required to
'conform, as near as may be, to the practice, pleadings, forms and proceedings existing at the time in like
causes in the courts of record of the State' in which the suits were instituted," but that the subsequent
passage of Rule 71A rendered that portion of the statute inapplicable. Kirby 

n. 2,

(quoting Act of Aug. 1, 1888, ch. 728, § 2, 25 Stat. 357).
See id.; see also Kirby 

n. 2, 

; 93.970 

n. 7, 

; Alabama Power 

.

        In addition to USG Pipeline, Kirby Forest, and 93.970 Acres of Land, this circuit's holding in

Alabama Power Co. v. 1354.02 Acres of Land is particularly instructive in the case before us because the

Federal Power Act, which was at issue in Alabama Power, contains practice and procedure language that is

virtually identical to the language in the Natural Gas Act's practice and procedure clause. Compare 16 U.S.C.

§ 814, with 15 U.S.C. § 717f(h). The Alabama Power court affirmed the district court's appointment of a

commission pursuant to Rule 71A and thus, implicitly recognized that Rule 71A supersedes practice and

procedure language in prior conflicting statutes. 

. The Rices attempt to distinguish

Alabama Power by the single fact that Alabama Power concerned the Federal Power Act, 16 U.S.C. § 814,

and not the Natural Gas Act. While this distinction may prevent Alabama Power from providing binding

precedent in this case, Alabama Power is nonetheless persuasive because of the similarity in the practice and

procedure language of the two statutes. We can conceive of no logical reason for the practice and procedure

language of these two statutes to be given different meanings.

        In conclusion, we hold that the practices and procedures of federal eminent domain actions, including

those filed pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h), are governed by Rule 71A and not by state

law. Moreover, we hold that Rule 71A supersedes § 717f(h). It is clear to us that Rule 71A was promulgated

to override a number of confusing federal eminent domain practice and procedure provisions, such as that

of 15 U.S.C. § 717f(h), and to provide a unified and coherent set of rules and procedures to be used in

deciding federal eminent domain actions. Accordingly, we conclude that the district court acted within its

discretion in denying the Rices' jury demand and in appointing a commission to determine just compensation.

B.      Adequacy of Legal Description

        Concordant with their assertion that the Natural Gas Act's practice and procedure language applies

to this case, rather than Rule 71A, the Rices argue that Alabama state law and procedure govern the legal
description requirements. Because we have already determined that Rule 71A supersedes the practice and

procedure language in the Natural Gas Act, 15 U.S.C § 717f(h), their argument on this point must fail as well.

         Rule 71A(c)(2) requires that a condemnation complaint include a description of the property

sufficient for its identification. Southern's complaint for condemnation easily satisfied this requirement by

incorporating both a legal description and a plat map showing the placement of the pipeline and relevant

easements. Moreover, as a practical matter, the commissioners, the parties, and the lawyers have walked the

centerline of the easement from one end of the Rices' property to the other, and no one had any problem

locating the easement. Thus, we see no merit to the Rices' assertion that the property description was

inadequate.

C.      Just Compensation

         A district court's review of a commission's report under Rule 71A(h) is the same as its power over

the findings of fact by a master under Rule 53(e)(2) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P.

71A(h); see also United States v. Merz, 

, 198-200, 

, 

(1964)

(discussing Rule 71A(h)). Where a district court determines that a commission's findings are inadequate or

clearly erroneous, the court, in accordance with Rule 53(e)(2), may use its informed discretion to " 'modify'

the report on the basis of the record made before the commissioners, or it 'may reject it in whole or in part

or may receive further evidence or may recommit it with instructions.' " 

, 

(quoting Fed.R.Civ.P. 53(e)(2)).

         In reviewing the district court's determination of just compensation, this court determines: (1)

whether the district court applied the proper standard in considering the findings; (2) whether it erred in

rejecting the findings of the commission as clearly erroneous; and (3) whether, in turn, the findings made

by the district court are clearly erroneous. See United States v. Twin City Power Co. of Georgia, 

, 203 (5th Cir.1958). This court reviews not the award of the commission, but the judgment of the district

court. See Parks v. United States, 

, 485 (5th Cir.1961).
        In the Rices' just compensation case, the commission awarded $3,980 in compensation for the

permanent easement over 1.99 acres of the Rices' land, $14,000 for the decreased property value of the Rices'

remaining land, and $2,000 for the temporary easement over additional land and the temporary dislocation

of the Rices' cattle. Neither party disputed the award of $3,980 for the permanent taking. Southern contested

the remaining awards. After reviewing the commission's findings on the Rices' claim, the district court found

that the commission violated its instructions and erroneously recommended damages unsupported by the

evidence. In particular, the district court modified two elements of the commission's report that were not

supported by substantial evidence: (1) damages for a "limiting effect" on "future improvements," and (2)

amounts awarded for dislocation of cattle operations.

         The commission awarded $14,000 to the Rices as compensation for the decrease in property value

due to the "limiting effect" of the pipeline on the Rices' ability to make future improvements to the remainder

of their land. Southern objected that this award was improper in light of the commission's instructions. In

its instructions to the commission, the district court explained that future uses of the property may be

considered in determining just compensation only when the evidence shows such use to have been, but for

the taking, a probable use in the reasonably near future.

        Southern argues that the evidence on future use presented to the commission did not show a probable

use in the reasonably near future. The commission heard the testimony of three expert witnesses regarding

the value of the Rices' land7, as well as the testimony of Max Rice himself. The only future improvement Mr.

Rice suggested to the commission was that he or his grandson "might build" some additional chicken houses.

Neither through this testimony, nor elsewhere, did the Rices provide evidence of actually making a decision

to build, provide evidence of steps taken toward construction, or even describe the location of any future

improvements within the two acre pipeline easement. Moreover, the Rices never established that any

suggested improvement could not be built on the almost 100 acres they own outside of the pipeline easement.



   7
    One appraiser testified that there would be no damage to the remainder of the property due to the
existence of the pipeline. Two other appraisers estimated that the total value of the Rices' land would be
reduced by approximately $30,000 to $50,000.
        Upon review of the evidence, the district court concluded that there was insufficient evidence that

future improvements were planned for the condemned property. The district court therefore refused to extend

an award unsupported by the evidence. We agree with the district court that the record evidence of plans for

any future improvements to the property was speculative at best and insufficient to merit an award for future

damage. Accordingly, we affirm that aspect of the district court's judgment.

         The commission also determined that the Rices were entitled to an additional $2,000 to compensate

for a 20-foot wide temporary construction easement and to cover the cost of relocating the Rices' cattle while

Southern installed the gas line. The commission expressly adopted the valuation offered by one expert that

the rental value of the temporary construction easement was $388. Neither party disputes this rental value

amount. The remaining $1,612 awarded by the commission represents unspecified damages arising out of

the need to move the cattle during the installation of the gas line. Southern objected to the commission's

award of $1,612.

        Upon reviewing the evidence presented to the commission, the district court determined that the $388

figure was acceptable, but that the additional $1,612 "dislocation" award was clearly erroneous due to a lack

of evidence. The commission's report is silent as to any testimony or evidence regarding the cost of cattle

disruption. The Rices admit that no witness testified to any dollar value associated with disruption to the

cattle operations and that the sole witness to raise the subject, Mr. Rice, uttered very little on the subject.

Additionally, Southern's expert appraiser attributed no damages to cattle dislocation.

        The district court determined that there was a "lack of evidence" to support the commission's $1,612

award for cattle dislocation, but concluded that there was "evidence of some 'dislocation' in cattle operations."

The district court then reduced the commission's dislocation award from $1,612 to $612. We find it

problematic that the district court reduced the commission's dislocation award because of insufficient

evidence, but then failed to identify any specific evidence which supported its own, lower award. In doing

so, we conclude the district court committed clear error. Consequently, we vacate the district court's award
of $612 in compensation for cattle dislocation and remand this case to the district court for more specific

findings as to the damage caused by the dislocation of cattle.8

                                             IV. CONCLUSION

        For the reasons set forth in this opinion, we affirm all of the district court's judgment, with the

exception of the amount awarded for cattle dislocation. That part of the judgment is vacated and we remand

this case to the district court for further proceedings consistent with this opinion.

        AFFIRMED IN PART, VACATED IN PART AND REMANDED.




   8
    Because the original basis for the commission's dislocation award is unclear, the district court may
decide to remand this issue to the commission for specific findings regarding the cost of moving the
Rices' cattle. We leave that decision to the district court on remand.